2008 PLP (C (PLC(CS))

SHAH SAHIB (MEMBER).

The appellant had filed the instant appeal against the Order No.7347/EC dated 19-12-2005 of the respondent No.1, whereby he had been dismissed from service. It had been prayed that the impugned order may be set aside and he be reinstated in service with all back-benefits.

2. Brief facts of the case are that the appellant had been enlisted as constable in the Frontier Reserve Police, Headquarters, N.-W.F.P. Peshawar w.e.f. 1-10-2002 after observing all codal formalities and had been allotted Constabulary No.725. Thereafter, he had been deputed to undergo training at Police Training College, Hangu which he successfully completed. He had been transferred from Frontier Reserve Police (FRP) Kohat Range to FRP D.I. Khan vide order, dated 1-12-2005. During his stay as constable FRP Kohat, the appellant had been charge-sheeted for a statement of allegations dated 3-4-2004 to the effect that at the time of recruitment he had been over-age by 3 years and 22 days against the prescribed age limit. He submitted his reply to the allegations levelled in the charge-sheet on 6-4-2004. Consequently, he had been put on a show-cause notice on 30-6-2004. He had also properly replied the allegations contained in the show-cause notice on 8-7-2004. But, the appellant had been dismissed from service retrospectively from the bate of his enlistment vide the impugned order, dated 1-12-2005 without taking into consideration the rules regarding relaxation of age limit and without appreciating the report of the Inquiry officer. Feeling aggrieved from the said order, the appellant had preferred a departmental appeal on 7-1-2006, but the same had been filed on 8-3-2006. Hence, the appellant had filed the instant appeal on the following grounds on 20-3-2007: -- (a) that retrospective dismissal from service had not been covered by any law; (b) that respondent No.1 could not punish the appellant for his own lapses with such a harsh penalty; (c) that good working and professional training of the appellant had not been appreciated; (d) that amendments in the rules for relaxation of upper age limit and directives as already conveyed by respondent No.2 to all subordinate offices as contained in Ends. No.15719-29/E-11, dated 26-8-1999, Letter No.SOR-VI/E&AD/2-26/98 dated 16-9-2003, have not been kept in mind, while issuing the impugned order.

3. The case had been admitted to full hearing on 6-4-2006 and the respondents had been put on notice. They appeared through their representatives, filed written reply, contested the appeal and denied the claim of the appellant. The appellant had also filed replication in rebuttal.

4. Arguments heard and record perused.

5. The learned counsel for the appellant contended that the appellant had been validly recruited by the competent authority after observing all the codal formalities. While respondent No.2 had relaxed the upper age limit in the appellant's favour by 2 years, there had been no cogent reason to dismiss the appellant on account of being over-age for one year and 22 days. In case the age had been such a strict condition, the respondent-Department should have short-listed the eligible candidates who had been within the age limit. It appeared that the age factor was not given due importance at the time of the appellant's enlistment/selection and had been left for the approval of the competent authority after enlistment/selection. The respondent-Department was required to have obtained age relaxation for one year and 22 days from the competent authority but it lingered the case on while the appellant had to suffer for no fault on his part.

6. The learned Government Pleader contended that the appellant had been enlisted as constable in the Frontier Reserve Police by the incompetent authority by fraudulent means in clear violation of police rules and laid down policies of the Provincial Government. Relaxation in upper age had to be given only when no eligible candidate had been available. The appellant being over-age had been dismissed from service from the date of his enlistment after observing the codal formalities. He prayed that the appeal may be dismissed.

7. After hearing arguments on both sides, the Tribunal holds that the appellant had been appointed as constable by the competent authority after considering his eligibility on the touchstone of the relevant rules. The appellant had successfully completed his training and had served the respondent-Department for more than 2 years. The claim of the respondent-Department that the appellant had been over-age who had got his enlistment fraudulently and without observing the legal formalities, does not seem quite convincing. The respondents had penalized the appellant for their own lapses which did not have the backing of the law. This has been further clarified in the dictum of the Honourable Supreme Court of Pakistan reported in 1996 SCMR

413. If the respondent-Department had not observed or omitted the codal formalities, it is not the appellant who should be penalized for the lapses of the former. After the enlistment of appellant, he had been deputed by the respondent-Department for undergoing training which he had successfully completed and had served the respondent-Department for more than 2 years. The valuable rights of employment in the Government had accrued to him which cannot be taken back from him for no fault on his part. The Inquiry Officer had also recommended that relaxation in upper age limit for one year and 22 days be obtained from the competent authority. But, instead of acting on the advice of its own senior officer, the respondent-Department had dismissed the appellant from service from the date of his enlistment which had been repugnant to the law and rules.

8. In view of the foregoing reasons, the Tribunal holds that the appellant had successfully made out a case warranting its interference. The Tribunal accordingly accepts the appeal, sets aside the impugned order of dismissal from service dated 19-12-2005 and reinstates the appellant in service. The respondent-Department is directed to consider the case of appellant for relaxation of upper age for one year and 22 days. However, the period from his dismissal from service till his reinstatement shall be treated as extraordinary leave (leave without pay). There are no orders as to costs. File be consigned to the record after completion. H.B.T./3/N.-W.F.P.(Ser) Appeal accepted.